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2015 DIGILAW 534 (RAJ)

Assistant Commercial Taxes Officer v. Indian Oil Corporation Ltd.

2015-02-26

PRAKASH GUPTA, SUNIL AMBWANI, VEERENDR SINGH SIRADHANA

body2015
Hon'ble AMBWANI, ACTG. C.J.—This Larger Bench of three Judges has been constituted, to resolve and decide the following questions, referred by a learned Single Judge vide his order dated 16.01.2006, framed after noticing a conflict of opinions in the Division Bench judgments of this Court in M/s. Parasnath Granite India Ltd. vs. State of Rajasthan & Another (D.B. Civil Writ Petition No.4250/1998), 2005(1) RLR 291, decided on 02.06.2004, and in M/s Maharana Talkies vs. State of Rajasthan & Others (D.B. Civil Special Appeal No.858/1994), reported in (2004) 19 Sales Tax Today 239, decided on 29.11.2004, as well as M/s. Lalji Mulji Transport Company vs. State of Rajasthan, 2002(3) RLR 255, as follows:- “(i) Whether requirement of mens rea is relevant for the purpose of determining the liability for penalty in terms of Section 78 sub-section(5) of the Rajasthan Sales Tax Act, 1994” (ii) Whether the mens rea is required to be proved as a necessary ingredient for imposition of penalty under sub-section(5) of Section 78 on proven violation of sub-section (2) of Section 78 of the Rajasthan Sales Tax Act, 1994? (iii) Whether in view of the amendment to Rule 55 of the Rajasthan Sales Tax Rules, 1995 pursuant to the decision of the Hon'ble Supreme Court in the case of State of Rajasthan and Another vs. M/s. D.P. Metals, on sufficient cause being shown whether any authority empowered would be justified in not imposing the penalty in the absence of mens rea being proved? (iv) Whether the mens rea is required to be proved as a necessary ingredient for imposing of penalty under sub-section (5) of Section 78 on proved violation of sub-section (2) of Section 78 of the Rajasthan Sales Tax Act, 1994? 2. Section 78 of the Rajasthan Sales Tax Act, 1994 (for short, 'the RST Act, 1994'), provides for establishment of check-post and inspection of goods while in movement. It is a complete code for establishment of check-posts, inspection of goods, seizure, release and imposition of penalty on the illegal and unauthorized movement of goods, for avoiding the levy, collection and assessment of tax. The provisions of Section 78 of the RST Act, 1994, are quoted as below:- “78. It is a complete code for establishment of check-posts, inspection of goods, seizure, release and imposition of penalty on the illegal and unauthorized movement of goods, for avoiding the levy, collection and assessment of tax. The provisions of Section 78 of the RST Act, 1994, are quoted as below:- “78. Establishment of check-post and inspection of goods while in movement:- (1) The Commissioner may, with a view to prevent or check avoidance or evasion of tax, by notification in the Official Gazette, direct the setting up of a checkpost at such place and for such period as may be specified in the notification, and every officer or official who exercises his powers and discharges his duties at such checkpost by way of inspection of documents produced and goods being moved, shall be its in charge. (2) The driver or the person in charge of a vehicle or carrier of goods in movement shall - (a) carry with him a goods vehicle record including “challans” and “bilties”, bills of sale or despatch memos and prescribed declaration forms; (b) stop the vehicle or carrier at every checkpost set up under sub-section (1); (c) produce all the documents including prescribed declaration forms relating to the goods before the in charge of the checkpost; (d) give all the information in his possession relating to the goods; and (e) allow the inspection of the goods by the in charge of the check post or any other person authorised by such in charge. Explanation.- For the purposes of this chapter, - (i) “vehicle or carrier” shall include any means of transportation including an animal to carry goods from one point to another point; (ii) “goods” shall include animals also, and (iii) “goods in movement” shall means - (a) the goods which are in the possession or control of a transporting agency or person or other such bailee; (b) the goods which are being carried in a vehicle or carrier belonging to the owner of such goods; and (c) the goods which are being carried by a person. ((2A) The State Government may require by notification that the documents required to be furnished under sub-section (2), shall be furnished by means of such electronic devices, and be accompanied by such processing fee, as may be prescribed.) (3) Where any goods are in movement within the territory of the State of Rajasthan, an officer empowered by the State Government in this behalf may stop the vehicle or the carrier or the person carrying such goods, for inspection, at any place within his jurisdiction and the provisions of sub-section (2) shall mutatis mutandis apply. (4) Where any goods in movement, other than exempted goods, are without documents, or are not supported by documents as referred to in sub-section (2), or documents produced appear false or forged, the in charge of the checkpost or the officer empowered under sub-section (3) may - (a) direct the driver or the person in charge of the vehicle or carrier or of the goods not to part with the goods in any manner including by transporting or re-booking, till a verification is done or an enquiry is made, which shall not take more than seven days; (b) seize the goods for reasons to be recorded in writing and shall give receipt of the goods to the person from whose possession or control they are seized; (c) release the goods seized in clause (b) to the owner of the goods or to anybody else duly authorised by such owner, during the course of the proceeding if the adequate security of the amount equal to the estimated value of the goods is furnished. (5) The in-charge of the checkpost or the officer empowered under sub-section (3), after having given the person in-charge of the goods a reasonable opportunity of being heard and after having held such enquiry as he may deem fit, shall impose on him for possession or movement of goods, whether seized or not, in violation of the provisions of clause (a) of sub-section (2) or for submission of false or forged documents or declaration, a penalty equal to 1(thirty percent of the value of such goods). (6) During the pendency of the proceeding under sub-section (5), if anybody appears before the in-charge of the checkpost or the officer empowered under sub-section (3) and prays for being impleaded as a party to the case on the ground of involvement of his interest therein, the said in-charge or the officer on being satisfied may permit him to be impleaded as a party to the cases; and thereafter, all the provisions of this section shall mutatis mutandis apply to him. (7) The in-charge of the checkpost or the officer empowered under sub-sec. (3) may release the goods to the owner of the goods or to anybody else duly authorised by such owner, if seized and not already released under clause (c) of sub-sec. (4), on payment of the penalty imposed under sub-section (5) or on furnishing such security for the payment thereof, as such in-charge or officer may consider necessary. (8) Where the driver or the person In-Charge of the vehicle or the carrier is found guilty for violation of the provisions of sub-section (2) subject to the provisions of sub-section (10), the in-charge of the checkpost or the officer empowered under sub-section (3) may detain such vehicle or carrier and after affording an opportunity of being heard to such driver or Person-in-Charge of the vehicle or the carrier, may impose a penalty on him as provided in sub-section (5). (9) The in-charge of the checkpost or the officer empowered under sub-sec. (3) may release the vehicle or the carrier on the payment of the amount of penalty imposed under sub-section (8) or on furnishing such security as may be directed by such in-charge or officer. (10) Where a transporter, while transporting goods, is found to be in collusion with trader to avoid or evade tax, the in-charge of the check post or the officer empowered under sub-section (3) shall detain the vehicle or carrier of such transporter and after affording him an opportunity of being heard and with the prior approval in writing of the Deputy Commissioner (Administration) having jurisdiction, may confiscate such vehicle or carrier. ((10-A) Notwithstanding anything contained in this section, where the driver or the person incharge of the vehicle or the carrier abstained from bringing or stopping the vehicle or carrier at the nearest check-post as provided under clause(b) of sub-section (2), the incharge of the check-post or the officer empowered under sub-section (3) may detain such vehicle or carrier and, after affording an opportunity of being heard to the owner or a person duly authorised by such owner or the driver or the person in-charge of the vehicle or carrier, may impose a penalty equal to fifty percent of the value of such goods.) ((11) If a transporter fails to give information as required from him under clause (d) of sub-section (2) about the consignor, consignee or the goods within such time as may be specified or transports the goods with forged documents, besides imposing the penalty under sub-section (5), it shall be presumed that the goods so transported have been sold in the State of Rajasthan by him and he shall be deemed to be a dealer for those goods under this Act. (12) The provisions of this Act shall, for the purpose of levy, collection and assessment of tax, determination of interest, payment and recovery of tax and interest, appeal, review or revision, apply to the transporter deemed to be a dealer under sub-section (11)).” 3. Rules 55 and 55-A of the Rajasthan Sales Tax Rules, 1995 (for short, 'the RST Rules, 1995'), made in exercise of the powers conferred by Section 99 of the RST Act, 1994, provide for delivery of documents and seizure of goods and mode of furnishing information at Check-Posts. The provisions of Rules 55 and 55-A of the RST Rules, 1995, are in aid of provisions of Section 78. Rules 55 and 55-A of the RST Rules, 1995, are quoted as below:- “55. Delivery of documents and seizure of goods:- (1) The owner or the person in charge of the goods and their absence, the owner or the driver of the vehicle, shall deliver the documents and declaration forms as provided in clause (a) of sub-section (2) of section 78, to the incharge of the nearest check-post. Delivery of documents and seizure of goods:- (1) The owner or the person in charge of the goods and their absence, the owner or the driver of the vehicle, shall deliver the documents and declaration forms as provided in clause (a) of sub-section (2) of section 78, to the incharge of the nearest check-post. If the goods in movement are not accompanied with complete documents and declaration forms, the incharge of the check-post shall afford an opportunity, to any of the above referred persons, to produce the required documents and/or declaration forms completed in all respect, when the goods enters or leaves the near check-post of the State. (1A)) On being asked by the Incharge of the check-post or by the officer empowered under rule 52, the person incharge of the goods, or in his absence, the driver of the vehicle or the carrier, shall deliver the documents and declaration form to such Incharge or officer, as provided in clause (a) of sub-section (2) of section 78. (2) Where any direction is issued in clause (a) of sub-section (4) of section 78, the Incharge of the check-post or the officer empowered under rule 52, shall complete the verification or enquiry within 7 days from the date of issue of the direction and take a view for action, if any, as warranted by the circumstances of the case. (3) Where a person incharge of the goods or the driver, as the case may be, does not possess any document and declaration form in respect of the goods in movement, or refuses to deliver the documents and the declaration forms, or the documents and the declaration forms produced appear to be false or forged, the Incharge of the check-post or the officer empowered under rule 52, may get such goods unloaded from the vehicle or the carrier and seize the same and shall issue a receipt of the goods so seized in form ST 20. (4) Where the goods are seized, the Incharge of the check-post or the officer empowered under rule 52 shall serve a notice on the person incharge of the goods or the vehicle or the carrier, or the owner of the goods, if present, as the case may be requiring him to show cause within 7 days from the date of service of the notice as to why the documents and declaration as referred to in sub-rule (1A), were not produced or why the correct particulars were not furnished, at the time of checking. If the said Incharge of the check-post or the empowered officer is satisfied with the reply, or the penalty imposed under sub-section (5) of section 78 has been paid, or a security as may be demanded in lieu of such amount of penalty has been furnished, he shall release the goods and deliver the same to the owner of the goods or to anybody else duly authorised by such owner, after obtaining an acknowledgment to that effect. (5) Where the goods seized are subject to speedy and natural decay, and in the case of other goods where no compliance of the requirement of sub-rule (4) is made within three months from the date of service of the notice, the Incharge of the check-post or the empowered officer with the written approval of the Deputy Commissioner (Administration) having jurisdiction, may sell such goods in open auction in accordance with the procedure laid down and the instruction issued by the Commissioner. (6) The sale proceeds received under sub-rule (5) shall be deposited in the Government account. (7) Any person entitled to such sale proceeds shall, on an application to the Deputy Commissioner (Administration) referred to in sub-rule (5), be paid the sale proceeds, referred to in sub-rule (6), after deducting therefrom the amount of penalty due in respect of the goods seized and auctioned, the amount of interest, if any, the expenses of the sale and other incidental charges.” 55.A. Mode of furnishing information of Check-Posts.- (1) The information required under sub-section (2) of section 78 may also be supplied in such digital, electronic or encoded manner as may be notified by the State Government. (2) The digital, electronic or encoded formats so notified shall have same legal status as documents required under sub-section (2) of section 78 and the provisions of section 78 shall apply mutatis mutandis when the information is supplied in such digital, electronic or encoded formats. (3) The State Government may notify a fee for processing the information supplied under section 78 or under this rule. This fee shall be payable by the owner of the truck or the person in charge of the goods at the time of entry of such goods into the State of leaving the State of Rajasthan.)” 4. The question No.(i), referred to the Larger Bench, raises a question of relevancy of mens rea (knowledge of the wrongfulness of the act; guilty intention; or guilty mind), for the purpose of determining the liability for penalty in terms of sub-section (5) of Section 78 of the RST Act, 1994. The answer to question Nos. (ii) and (iv) which is repetition of question No.(ii) will be necessary, if the question No.(i) is decided in affirmative. The question No.(iii) has been framed, in view of the amendment made in Rule 55 of the RST Rules, 1995, pursuant to the decision of the Apex Court in State of Rajasthan And Another vs. M/s. D.P. Metals, (2002) 1 SCC 279 , by which a new sub-section (1) was inserted and re-numbered by Notification dated 22.03.2002, providing for affording an opportunity to the owner or the person in-charge of the goods, and in their absence, the owner or the driver of the vehicle, to produce the required documents and/or declaration forms complete in all respects, when the goods enters or leaves the nearest check-post of the State. The answer to question No.(iii) will also depend upon the answer to the question No.(i), which is a primary question, to be decided by this Court. 5. Before proceeding to refer to the argument raised at the Bar, we find that question No.(i) has been substantially answered by the Apex Court in Guljag Industries vs. Commercial Taxes Officer, (2007) 7 SCC 269 , decided on 03.08.2007, in which after explaining, in para 9 of the judgment, that the existence of mens rea is an essential ingredient of an offence, it was observed that; “it is a rule of construction. If there is a conflict between the common law and the statute law, one has to construe a statute in conformity with the common law. However, if it is plain from the statute that it intends to alter the course of the common law, then that plain meaning should be accepted. Existence of mens rea is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals. A penalty imposed for a tax delinquency is a civil obligation, remedial and coercive in its nature, and is different from the penalty for a crime.” 6. The facts in the case of Guljag Industries vs. Commercial Taxes Officer (supra), arising from the State of Rajasthan were that on 21.01.1995, near Banar Road Check-post a vehicle was checked in which 47 barrels of chemicals were transported from Vishakhapatnam. Along with the goods, outward Gate Pass No.4331 dated 16.09.1995 of Andhra Petro-Chemicals Ltd. and Consignment No.920 dated 16.09.1995 of M/s AVR & Co., were found in which the name of the cosignor was shown as M/s Andhra Petro-Chemicals Ltd., Vishakhapatnam and the name of the assessee was mentioned as M/s. Guljag Industries. Along with the goods, Form ST 18-A No.236084, was also found in which the goods transported were not declared though the same was duly signed. Under the circumstances, the AO came to the conclusion that there was a contravention of the provisions of Section 22-A(3) of the Rajasthan Salex Tax Act, 1954 read with Rule 62-A(3) of the Rajasthan Sales Tax Rules, 1955. He issued notice under Section 22-A(7) of the Act, calling upon M/s Guljag Industries to show cause why penalty was not leviable for violation of Section 22-A(3) of the Act. In response to the notice, M/s Guljag Industries submitted that there was mistake in filling the declaration form and, therefore, there was no intention of tax evasion. It was further submitted that the said declaration was supposed to be filled in by the consignor but due to lack of knowledge of Hindi language, the same could not be filled in by the consignor. The AO did not accept the explanation and refused to accept the unfilled form as a declaration. He imposed a penalty under Section 22-A(7) of the Act. The AO did not accept the explanation and refused to accept the unfilled form as a declaration. He imposed a penalty under Section 22-A(7) of the Act. In appeal, the Deputy Commissioner(Appeals) came to a conclusion that under Rule 25(3) of the RST Rules, 1955, the purchasing dealer was required to give the requisite declaration in Form ST 18-A to the selling dealer. The responsibility to fill the form was on M/s Guljag Industries, which carried on its business from Rajasthan, and was familiar with the Hindi language, therefore, the unfilled form ST 18-A cannot be accepted as a declaration. The appeal was dismissed. In second appeal, the Rajasthan Tax Board came to a conclusion that penalty could not be imposed without establishing guilty mind (mens rea) on the part of M/s Guljag Industries. Learned Single Judge of the Rajasthan High Court, in revision, held that the presence of mens rea was not a sine qua non for levying penalty in case of contravention of Section 22-A(3) of the Act, and in the present case, Form ST 18-A was totally blank, though signed by the consignee. It was the duty of the consignee or his agent to see that the form was returned to the transporter with complete details by the consignor. The filling up of the form was the duty of the consignee/importer. Since the consignee was from the Rajasthan, and the form was unfilled, it cannot be said that the error was accidental. Moreover, in both the States, there are Hindi speaking persons. In the circumstances, it was held that the form was deliberately not filled in, which indicated an intention of the assessee to evade tax. The order of the Board was set aside. 7. In other case, connected with the case decided by the Apex Court, on 01.11.1990, at Abu Road Check-post, a vehicle, carrying goods, was checked. On search, the driver furnished GR No.1, dated 31.10.1990, issued by M/s Delhi Bombay Road Lines. The consignment was shown to be from M/s Sumit Marbles, Abu Road. In the bill dated 31.10.1990, referring 50.31 sqm. of granite, priced at Rs.34,494/-, the name of the recipient was shown as M/s Sri Parashwanath Granites. On verification, the goods were found to be more than the quantity shown in the bill. The consignment was shown to be from M/s Sumit Marbles, Abu Road. In the bill dated 31.10.1990, referring 50.31 sqm. of granite, priced at Rs.34,494/-, the name of the recipient was shown as M/s Sri Parashwanath Granites. On verification, the goods were found to be more than the quantity shown in the bill. On searching the vehicles, two envelopes were found, one of which was of M/s Parashwanath Granites and other was of M/s Hindustan Granites. On suspicion, notice under Rule 54 of the Rules was issued, on which the representative of the assessee appeared. He deposited the disputed penalty amount, and on which the goods were released. In reply to the show cause notice given to the assessee proposing levy of penalty under Section 22-A(7) of the Act, it was submitted by the assessee that he had delivered the relevant documents to the transporter, which were found to be in the vehicle at the time of seizure of the goods, and, therefore, the assessee was not liable to be penalised. According to the assessee, the driver of the vehicle had made a mistake in not producing the documents, which were with him at the time of checking, and thus, the assessee was not liable to be penalised for breach of Rule 62-A of the Rules. The explanation of the assessee was not accepted. 8. The Deputy Commissioner(Appeals), confirmed the levy of penalty. The appellate authority held that non-production of the bill at the check-post indicated guilty mind of the assessee to evade tax. The Rajasthan Sales Tax Tribunal, took the view that mere non-production of the document by the driver at the check-post cannot result in levy of penalty. In revision, learned Single Judge of the Rajasthan High Court remanded the matter to the Rajasthan Taxation Tribunal. The Tribunal took a view that it was obligatory on the part of the consignee or his agent to carry with him the requisite documents, and also to produce the documents at the check-post, on demand by the officer. The contravention of Section 22-A of the Act cannot be obliterated by subsequently producing the documents at the time of assessment. The Tribunal held that penalty was automatic once the driver, on demand, failed to produce the documents. The contravention of Section 22-A of the Act cannot be obliterated by subsequently producing the documents at the time of assessment. The Tribunal held that penalty was automatic once the driver, on demand, failed to produce the documents. Once the offence is complete subsequent furnishing of the documents even if bona fide, will not relieve the owner of the goods from liability of penalty. 9. The Rajasthan High Court had held in its judgment dated 02.06.2004, that levy of penalty was not automatic in the case where the goods in movement are found to be unaccompanied by the required documents. The question of levy of penalty would arise only before the goods are delivered to consignee, and if it is found that the goods are in movement unaccompanied with documents. The High Court found that if for some reason, the driver failed to produce these documents at the check-post, which were subsequently produced and were not false or forged, it could not be said that there was intention to evade the tax. The High Court held that merely because the driver had not shown the documents given to him by the assessee, could not make the assessee guilty of contravention. Notwithstanding, the failure on the part of the driver to show the bill accompanying the goods at the time of checking, which were recovered from his possession later, ruled out the possibility of the documents being subsequently prepared. The order imposing penalty was consequently set aside. The High Court clarified that the case of Sri Parashwanath Granites was not the case of the documents being incorrect. It was found that the bill accompanying the goods was correct in all respects, and therefore, there was no tax evasion. 10. Considering the provisions of the Act, the Supreme Court in Guljag Industries vs. Commercial Taxes Officer (supra), clarified the legal position with regard to the mens rea in paragraphs 27, 30, 33, 34 and 35, as follows:- “27. Default or failure to comply with Section 78(2) is the failure/ default of statutory civil obligation and proceedings under Section 78(5) is neither criminal nor quasi-criminal in nature. The penalty is for statutory offence. therefore, there is no question of proving of intention or of mens rea as the same is excluded from the category of essential element for imposing penalty. The penalty is for statutory offence. therefore, there is no question of proving of intention or of mens rea as the same is excluded from the category of essential element for imposing penalty. Penalty under Section 78(5) is attracted as soon as there is contravention of statutory obligations. Intention of parties committing such violation is wholly irrelevant. 30. In Chairman, SEBI vs. Shriram Mutual Fund and Anr., this Court found on facts that a mutual fund had violated SEBI (Mutual Funds) Regulations, 1996. Under the said Regulations there was a restriction placed on the mutual fund on purchasing or selling shares through any broker associated with the Sponsor of the mutual fund beyond a specified limit. It is in this context that the Division Bench of this Court held that mens rea was not an essential ingredient for contravention of the provisions of a civil act. The breach of a civil obligation which attracts penalty under the Act would immediately attract the levy of penalty irrespective of the fact whether the contravention was made by the defaulter with any guilty intention. It was further held that unless the language of the provision intends the need to establish mens rea, it is generally sufficient to prove the default/contravention in complying with the statute. In the present case also the statute provides for a hearing. However, that hearing is only to find out whether the assessee has contravened Section 78(2) and not to find out evasion of tax which function is assigned not to the officer at the check-post but to the A.O. in assessment proceedings. In the circumstances, we are of the view that mens rea is not an essential element in the matter of imposition of penalty under Section 78(5). 33. In our view, the aforestated judgment in the case of D.P. Metals (supra) has no application to the present case. We are not concerned in the present case with false or forged documents/declaration. In the present case the goods in movement were carried with the blank declaration Form 18A/18C which was duly signed by the assessee. therefore, as stated above, we hold that the goods in movement were carried without the declaration Form 18A/18C. therefore, Section 78(2)(a) stood attracted. Moreover, in the present case, there were no special circumstances indicated by the assessee as to why the forms which were duly signed were not filled in. therefore, as stated above, we hold that the goods in movement were carried without the declaration Form 18A/18C. therefore, Section 78(2)(a) stood attracted. Moreover, in the present case, there were no special circumstances indicated by the assessee as to why the forms which were duly signed were not filled in. therefore, in our view the above judgment in the case of D.P. Metals (supra) has no application to the facts of the present case. As stated, we are concerned with the blank declaration Form 18A/18C which has travelled with the goods in movement, though signed, was left deliberately blank. The declaration Form 18A/18C is like a return under the Income-Tax Act, 1961. The Assessing Officer completes the assessment on the basis of Form 18A/18C. If that form is left blank in all material respects then it is impossible for the A.O. to arrive at the taxable turnover of the assessee. therefore, in our view, the judgment of this Court in D.P. Metals (supra) has no application to the present case. 34. Before concluding, we may mention that in this batch of civil appeals we have civil appeals filed by the Department. These civil appeals relate to cases where specified documents did not accompanied the goods in movement. The lead case in that regard is civil Appeal No. 5240 of 2005 -Assistant Commercial Taxes Officer vs. Guljag Industries Ltd. filed by the Department. We make it clear that our judgment is basically confined to cases where blank/incomplete Form 18A/18C had accompanied the goods in movement. Whatever we have stated above is in the context of the incomplete Form 18A/18C travelling along with the goods in movement. However, civil Appeal No. 5240 of 2005 and such other civil appeals filed by the State (Department) are those cases where the documents were not accompanied the goods in movement, like, the bills of sale, bills of transport etc. In civil Appeal No. 5240 of 2005 the facts of which have been reproduced hereinabove, show that the case was confined to documents not accompanying the goods in movement. therefore, the said appeals stand on a different footing. They have nothing to do with incomplete forms travelling along with the goods in movement. These civil appeals filed by the State (Department) shall be decided in the light of the judgment of this Court in D.P. Metals (supra). therefore, the said appeals stand on a different footing. They have nothing to do with incomplete forms travelling along with the goods in movement. These civil appeals filed by the State (Department) shall be decided in the light of the judgment of this Court in D.P. Metals (supra). However, cases where goods in movement were accompanied by Form No. 18A/18C without duly signed but incomplete in material particulars like description of goods shall be governed by the law discussed hereinabove by us. 35. For the aforestated reasons, we hold that Section 78(5) of the RST Act 1994 (Section 22A(7) of the RST Act 1954) is the section enacted to provide remedy for loss of revenue and it is not enacted to punish the offender for committing economic offence and, therefore, mens rea is not an essential ingredient for contravention of Section 78(2) of the RST Act 1994. That, the breach of Section 78(2) would attract the levy of penalty under Section 78(5) in cases where the goods in movement have travelled with an incomplete Form No. 18A/18C. We accordingly uphold the judgment of the High Court of Rajasthan in Sales Tax Revision No. 1023/2002 dated 14.10.03 (which is annexed as p. 1 of the appeal paper book in Civil Appeal No. 5197 of 2005 filed by Guljag Industries vs. CTO).” 11. The judgment of the Apex Court in Guljag Industries vs. Commercial Taxs Officer (supra), has clearly explained the law, with regard to the relevance of mens rea, and its proof, for the purposes of determining the liability for penalty in terms of sub-section (5) of Section 78 of the RST Act, 1994, and thus, squarely covers the question No.(i), which guides the question Nos.(ii) and (iv) also. 12. In Guljag Industries vs. Commercial Taxes Officer (supra), it was held that default or failure to comply with Section 78(2), is the failure/default of statutory civil obligation and proceedings under Section 78(5) are neither criminal nor quasi-criminal in nature. The penalty is for statutory offence and, therefore, there is no question of proving of intention or of mens rea, as the same is excluded from the category of essential element for imposing penalty. The penalty under Section 78(5) is attracted as soon as there is contravention of statutory obligations. The intention of parties committing such violation is wholly irrelevant. 13. The penalty under Section 78(5) is attracted as soon as there is contravention of statutory obligations. The intention of parties committing such violation is wholly irrelevant. 13. In para 25 of the judgment, it was explained that there is dichotomy between contravention of Section 78(2) of the Act, which invites strict civil liability on the assessee and the evasion of tax. When a statement of import/export is not filed before the AO, it results in evasion of tax, however, when the goods in movement are carried without the declaration Form ST 18-A/18-C, then strict liability comes in, in the form of Section 78(5) of the Act. Breach of Section 78(2) imposes strict liability under Section 78(5) because as explained, goods in movement cannot be carried without Form ST 18-A/18-C. 14. The Supreme Court further explained in para 26, that the object behind enactment of Section 78(5), is to emphasise loss of revenue and to provide a remedy for such loss. It is not the object of the said section to punish the offender for having committed an economic offence and to deter him from committing such offences. The penalty imposed under Section 78(5), is a civil liability. Willful breach is not an essential ingredient for attracting the civil liability as in the case of prosecution. Section 78(2) is a mandatory provision. If the declaration Form ST 18-A/18-C does not support the goods in movement because it is left blank, then in that event Section 78(5) provides for imposition of monetary penalty for non-compliance. 15. The Supreme Court relied on the judgment of Chairman, SEBI vs. Shriram Mutual Fund, (2006) 5 SCC 361 , in which it was held that where the mutual fund had violated the SEBI(Mutual Fund) Regulations, 1996, it places restriction on the mutual fund on purchasing or selling shares through any broker associated with the sponsor of the mutual fund beyond a specified limit. The breach of a civil obligation which attracts penalty under the Act would immediately attract the levy of penalty irrespective of the fact whether the contravention was made by the defaulter with any guilty intention. The Supreme Court had held in Chairman, SEBI vs. Shriram Mutual Fund (supra), that unless the language of the provision intends the need to establish mens rea, it is generally sufficient to prove the default/contravention in complying with the statute. The statute provides for a hearing. The Supreme Court had held in Chairman, SEBI vs. Shriram Mutual Fund (supra), that unless the language of the provision intends the need to establish mens rea, it is generally sufficient to prove the default/contravention in complying with the statute. The statute provides for a hearing. In the case of RST Act, 1994, hearing is only to find out whether the assessee had contravened Section 78(2) of the RST Act, 1994, and not to find out evasion of tax which function is not assigned to the officer at the check-post, but to the Assessment Officer in the assessment proceedings. In the circumstances, the Supreme Court, without any doubt or ambiguity, held that mens rea is not an essential element in the matter of imposition of penalty under Section 78(5) of the RST, 1994. 16. We are, thus, relieved of deciding the question No.(i), or for that matter, question Nos.(ii) and (iv), which depend upon the answer of the question No.(i), after the Supreme Court has held authoritatively in Guljag Industries vs. Commercial Taxs Officer (supra), that the mens rea is not an essential element in the matter of imposition of penalty under Section 78(5) of the RST Act, 1994. The rule of stare decisis applies to follow the opinion of the Supreme Court on the issue. 17. In view of the authoritative pronouncements on question No.(i), which also governs question Nos.(ii) and (iv) also, we need not discuss other decisions, cited by Shri R.B. Mathur, Senior Standing Counsel for the Commercial Taxes Department. We may however only refer to his argument, in which he has explained the judgment of Hon'ble Supreme Court in Guljag Industries vs. Commercial Taxs Officer (supra), with the help of other judgments of the Supreme Court in Director of Enforcement vs. M.C.T.M. Corporation Pvt. Ltd. And Others, (1996) 2 SCC 471 ; State of Rajasthan vs. D.P. Metals (supra), Chairman, SEBI vs. Shriram Mutual Fund And Another (supra); Union of India And Others vs. Dharmendra Textiles Processors And Others, (2008) 306 ITR 277(SC); Commissioner of Income-Tax vs. Atul Mohan Bindal, (2009) 317 ITR 1 (SC); State of U.P. And Others vs. Sukhpal Singh Bal, (2005) 7 SCC 615 , an Assistant Commercial Taxes Officer vs. Bajaj Electricals Limited, (2009) 1 SCC 308 . 18. 18. In Director of Enforcement vs. M.C.T.M. Corporation Pvt. Ltd. And Others (supra), the Supreme Court held, with reference to the provisions of Sections 10(1) and 23(1)(a) of the Foreign Exchange Regulation Act, 1947, that mens rea is a state of mind, or 'guilty intention', as is considered under the criminal law, without which the accused cannot be held guilty of committing crime, and is not applicable to the proceedings under Section 23(1)(a) of the FERA, 1947, which are adjudicatory in nature and character and are not criminal proceedings. The officers of the Enforcement Directorate and other administrative authorities are expressly empowered by the Act to adjudicate only. Indeed, they have to act 'judicially' and follow the Rules of natural justice to the extent possible, but they are not the Judges of the 'Criminal Courts' trying an accused for commission of an offence, as understood in the general context. They perform quasi-judicial functions and do not act as 'courts' but only as 'administrators' and 'adjudicators'. They do not try an accused for commission of any crime, but determine the liability of the contravenor for the breach of his obligations, imposed under the Act. They impose penalty for the breach of the civil obligations laid down under the Act, and not impose any sentence for commission of an offence. The expression 'penalty' is a word of wide significance. Sometimes, it means recovery of an amount as a penal measure even in civil proceedings. An exaction which is not compensatory in character, is also termed as a 'penalty'. When penalty is imposed by an adjudicating officer, it is done so in adjudicatory proceedings, and not by way of fine as a result of prosecution of an accused for commission of an offence in a criminal Court. Merely because penalty clause exists in Section 23(1)(a), the nature of the proceedings under that Section is not changed from adjudicatory to criminal prosecution. An order made by an adjudicating authority under the Act is not that of conviction but of determination of the breach of the civil obligation by the offender. 19. Mr. R.B. Mathur submits that breach of the provisions of Section 78(5) of the RST Act, 1994, falls in the category of 'civil offence', which is not punishable, by way of prosecution under Section 71 of the RST Act, 1994. 19. Mr. R.B. Mathur submits that breach of the provisions of Section 78(5) of the RST Act, 1994, falls in the category of 'civil offence', which is not punishable, by way of prosecution under Section 71 of the RST Act, 1994. Section 71, provides under the Act the prosecution is attracted where any persons, under sub-section (1)(g), fails to stop the vehicle or carrier transporting the goods, of which he is the driver or otherwise incharge, for being inspected in accordance with the provisions of the Act, or prevents or obstructs the inspection of the goods, or the vehicle, or the carrier transporting the goods, by the incharge of a check-post or other officer empowered in this behalf to discharge his duties, or under sub-section (1)(h), imports into or exports from the State of Rajasthan, any goods showing incorrect or fictitious names or addresses of consignors or consignees or incorrect details of goods or incorrect particulars in vouchers or way bills or goods receipts or other documents accompanying the goods while in movement. In such case, on a complaint being made against such person by the assessing authority, or any other competent officer after having obtained sanction from the Deputy Commissioner(Administration) having jurisdiction, he shall, on conviction by a Judicial Magistrate having jurisdiction, be punishable with simple imprisonment for a term, which may extend to six months, and with fine, not exceeding rupees five thousand, and for the offences covered under clauses(b), (c), (f), or (g) of Section 71(1) of the RST Act, 1994, with a minimum sentence of simple imprisonment of three months. In such case, mens rea would be required as the offences disclosed under Section 71(1) are criminal in nature, and that in such case, the Judicial Magistrate will be required to convict a person, and impose a sentence of imprisonment and/or fine. In such case, on a defence taken that a person was not of guilty mind, will require proof of guilty mind namely the mens rea as a necessary ingredient for conviction, sentence and fine. 20. Mr. T.C. Jain, learned counsel appearing for the respondents submits that the mens rea is necessary for imposing penalty under Section 78(5) of the RST Act, 1994, as while imposing penalty, the officer at the check-post, exercises quasi judicial powers. 20. Mr. T.C. Jain, learned counsel appearing for the respondents submits that the mens rea is necessary for imposing penalty under Section 78(5) of the RST Act, 1994, as while imposing penalty, the officer at the check-post, exercises quasi judicial powers. He has relied upon Nathulal vs. State of Madhya Pradesh, AIR 1966 SC 43 , Hindustan Steel Ltd. vs. The State of Orissa, 25 STC 211(SC) (para 9); E.I.D. Parry(I) Ltd. vs. Assistant Commissioner of Commercial Taxes And Another, 117 STC 457(SC); Union of India vs. Rajasthan Spinning & Weaving Mills, 11 VAT Reporter 210(SC), Parashwanath Granine India Ltd. vs. State of Rajasthan And Another, 114 STC 271(Raj. High Court), Lalji Mulji Transport Co. vs. State of Rajasthan (supra); ACTO, FS-I, Jaipur vs. M/s. Indian Oil Corpn. Ltd., (2006) 15 Tax Up Date 207 (Raj. High Court), and Commercial Taxes Officer vs. Deewan Rubber Industries Pvt. Ltd., 132 STC 211(Raj. High Court), in support of his submissions. 21. In Hindustan Steel Ltd. vs. The State of Orissa (supra), the Supreme Court held that an order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law, or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. The penalty will not also be imposed merely because it is lawful to do so. The facts of the case related to assessment of tax under the Orissa Sales Tax Act. The Sales Tax Officer directed the company to pay tax due for ten quarters ending December 31, 1958, and penalty in addition to the tax for failure to register itself as a dealer. The order was confirmed by the Appellate Authority, In second appeal, the Tribuanl agreed with the tax authorities. The Tribunal however substantially reduced the penalty imposed upon the company. The Supreme Court found that under the Act, penalty may be imposed for failure to register as a dealer, but the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. The Tribunal however substantially reduced the penalty imposed upon the company. The Supreme Court found that under the Act, penalty may be imposed for failure to register as a dealer, but the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act, or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. The penalty was imposed in the proceedings of assessment. The Supreme Court found that neither the Tribunal, nor the High Court had referred to the important piece of evidence, and thus, remanded the matter asking the parties to submit a supplementary statement of the case on the questions whether the company charged any profit apart from the storage charges for supplying cement and structural steel, for which there were no facts stated before the Tribunal, and which may have established that the assessee was a dealer, as defined, at the relevant time. 22. In E.I.D. Parry (I) Ltd. vs. Assistant Commissioner of Commercial Taxes And Another (supra), the penalty was imposed on failure to include the taxable item in the return in the proceedings of the assessment. The Supreme Court held that the levy of penalty was not justified. Until the judgment of the Madras High Court in Perambalur Sugar Mills Ltd. vs. State of Tamil Nadu, (1992) 86 STC 17 , dated July 15,1991, the correct position of law within the State of Tamil Nadu was not free from doubt, and even thereafter, the Sales Tax Tribunal had in subsequent orders, held that transport subsidy was not includible in the taxable turnover. Such a view was held by the Tribunal till March 19, 1993, on a bona fide belief that planting and transport subsidies were not includible in the taxable turnover. The appellants had not included those amounts in their turnover and for that reason, non-inclusion of these two items in the turnover, was not intentional. Such a view was held by the Tribunal till March 19, 1993, on a bona fide belief that planting and transport subsidies were not includible in the taxable turnover. The appellants had not included those amounts in their turnover and for that reason, non-inclusion of these two items in the turnover, was not intentional. Then the Supreme Court held that the appellants were not right in not including the amounts of planting subsidy and transport subsidy in the taxable turnover, considering the facts and circumstances of the case, it was not correct to say that they had acted deliberately in defiance of law, or that their conduct was dishonest or they had acted in conscious disregard of their obligation under the Sales Tax Act. 23. In Union of India vs. Rajasthan Spinning & Weaving Mills (supra), there was willful concealment resulted into evasion of tax. The Supreme Court held that the penalty was imposable when escaped duty was the result of deliberate deception by the assessee with the intent to evade duty by adopting any of the means as provided in Section 11A of the Central Excise Act, 1944. 24. Section 11AC of the Central Excise Act, 1944, uses the expression:“........by reasons of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or of the rules made thereunder with intent to evade payment of duty.......” The penalty under Section 11AC, as the word suggests, is punishment for an act of deliberate deception by the assessee with the intent to evade duty by adopting any of the means, as enshrined in the Section. 25. In paragraph 24 of the judgment, the Supreme Court clarified that what is stated in the judgment in regard to the decision in Dharmendra Textile, is only insofar as Section 11AC is concerned. The Supreme Court had not made any observation with regard to the several other statutory provisions that came up for consideration in that decision. 26. 25. In paragraph 24 of the judgment, the Supreme Court clarified that what is stated in the judgment in regard to the decision in Dharmendra Textile, is only insofar as Section 11AC is concerned. The Supreme Court had not made any observation with regard to the several other statutory provisions that came up for consideration in that decision. 26. The judgment of the Division Bench of this Court at Principal Seat at Jodhpur in Parashwanath Granine India Ltd. vs. State of Rajasthan And Another (supra), which has given rise to the reference to the Larger Bench, was the subject matter of appeal in the Supreme Court in Guljag Industries vs. Commercial Taxes Officer (supra), in which the Supreme Court has clarified the legal position with reference to mens rea, or guilty intention in the case of levy of penalty under Section 78(5) of the RST Act, 1994. The judgment of the Supreme Court clarified that the liability under Section 78(5) of the RST Act, 1994, is a civil liability for compliance of the Act, and that there is no obligation by the Sales Tax Authority at the check-post to make any assessment, nor the provisions of Section 71 are attracted. 27. In view of finality of the judgment, and the opinion expressed by the Hon'ble Supreme Court in Guljag Industries vs. Commercial Taxes Officer (supra), in the matter of proof of mens rea for imposition of penalty, and in holding that the mens rea is neither relevant, nor necessary to be proved for imposition of penalty under Section 78(5), on violation of Section 78(2) of the RST Act, 1994, we are not required to refer to the judgments of Rajasthan High Court in Parashwanath Granine India Ltd. vs. State of Rajasthan And Another (supra), Lalji Mulji Transport Co. vs. State of Rajasthan (supra), ACTO, FS-I, Jaipur vs. M/s. Indian Oil Corpn. Ltd. (supra), and Commercial Taxes Officer vs. Deewan Rubber Industries Pvt. Ltd. (supra). 28. Mr. vs. State of Rajasthan (supra), ACTO, FS-I, Jaipur vs. M/s. Indian Oil Corpn. Ltd. (supra), and Commercial Taxes Officer vs. Deewan Rubber Industries Pvt. Ltd. (supra). 28. Mr. Naresh Gupta, Advocate, assisting the Court, tried to draw the distinction between violation of the provisions of clause (a) of sub-section (2) of Section 78 of the RST Act, 1994, which provides for an obligation on the driver or the person incharge of a vehicle, or carrier, or of goods in movement, to carry with him a goods vehicle record including challans, bilties, bill of sale, or despatch memos and prescribed declaration forms, and for submission of the false or forged document or declaration. He submits that for submission of false or forged document or declaration, the language of the statute provides for determination of guilty mind, and thus, mens rea is necessary ingredient for the purpose of imposition of penalty. He submits that the judgment in Guljag Industries vs. Commercial Taxes Officer (supra), did not relate, nor is relevant for deciding whether mens rea is a necessary ingredient, where false or forged documents and declaration have been submitted, inviting levy of penalty. He relied on Commissioner of Sales Tax, Uttar Pradesh vs. Sanjiv Fabrics, (2010) 9 SCC 630 , in which it was held, with reference to Section 10(b) and 10-A of the Central Sales Tax Act, 1956, that the violations enumerated in clauses (b), (c) and (d) of Section 10, may not necessarily result in prosecution with possible imposition of sentence of imprisonment, as an alternative of imposition of penalty in respect of violation is provided under Section 10-A. It was held that where an offence can be said to have been committed without mens rea, is a vexed question. However, there is a presumption that mens rea is an essential ingredient in every offence but the presumption is liable to be displaced either by the words of the statute creating the offence, or by the subject matter with which it deals and both must be considered. The Supreme Court found that the explanation furnished by the dealers in the case before it, require a fresh look by the authority competent to levy penalty under Section 10-A in the light of the enunciation of law, and remanded both the cases back to the adjudicating authority for fresh consideration. 29. The Supreme Court found that the explanation furnished by the dealers in the case before it, require a fresh look by the authority competent to levy penalty under Section 10-A in the light of the enunciation of law, and remanded both the cases back to the adjudicating authority for fresh consideration. 29. Hon'ble Supreme Court in Commissioner of Sales Tax, Uttar Pradesh vs. Sanjiv Fabrics (supra), held that in examining whether mens rea is an essential element of an offence created under a taxing statute, regard must be had to the following factors; “(i) the object and scheme of the statute (ii) the language of the section; and (iii) the nature of penalty.” 30. The violations enumerated in clauses (b), (c) and (d) of Section 10, may not necessarily result in prosecution with the possible imposition of sentence of imprisonment, as an alternative is provided in respect of these violations in Section 10-A. The word 'false' under Section 10(b), has two distinct and well-recognised meanings, namely (i) intentionally or knowingly or negligently untrue, or (ii) untrue by mistake or accident, or honestly after the exercise of reasonable care. A thing is called 'false' when it is done, or made with knowledge, actual or constructive, that it is untrue or illegal, or it is said to be done falsely when the meaning is that the party is in fault for its error. The use of the expression 'falsely represents', is indicative of the fact that the offence under Section 10(b) of the Act comes into existence only where a dealer acts deliberately in defiance of law, or is guilty of contumacious or dishonest conduct. Therefore, in proceedings for levy of penalty under Section 10-A of the Act, the burden will be on the Revenue to prove the existence of circumstances constituting the said offence. In the light of the language employed in Section 10-A and the nature of penalty contemplated therein, it cannot be held that all types of omissions or commissions in the use of Form C will be embraced in the expression “false representation”. Thus, therefore, a finding of mens rea is a condition precedent for levying penalty under Section 10(b) read with Section 10-A of the Act. 31. Thus, therefore, a finding of mens rea is a condition precedent for levying penalty under Section 10(b) read with Section 10-A of the Act. 31. We do not find that the reference to Commissioner of Sales Tax, Uttar Pradesh vs. Sajiv Fabrics (supra), is relevant in the present case inasmuch as in Commissioner of Sales Tax, Uttar Pradesh vs. Sajiv Fabrics (supra), the interpretation of Section 10(b) and 10-A was under consideration, which uses of word 'falsely represents' under Section 10(b). There is difference between the word 'falsely represents', and the submission of false or forged document or declaration. The words 'falsely represents' would necessarily bring in determination, as to whether a thing called 'false', is done or made with knowledge, actual or constructive, that it is untrue or illegal or is said to be done falsely when the meaning is that the party is in fault for its error. The expression 'falsely represent' is indicative of the fact that the offence comes into existence only where a dealer acts deliberately in defiance of law or is guilty of contumacious or dishonest conduct. 32. In the case of submission of false or forged document and declaration, sub-section (2) of Section 78 or sub-section (5) of Section 78 of the RST Act, 1994, what is alleged is the presentation of false or forged documents. It is with reference to submission of false or forged document or declaration. Once the documents are found to be false or forged after making an enquiry under Rule 55 of the Rules, the intention to dishonestly use them, or the bonafides in relying upon them looses significance. The user of false or forged documents in transport of goods is sufficient proof of intention to evade tax without any enquiry except contemplated in sub-section (2) of Section 78 of the RST Act, 1994, to levy penalty. 33. Section 78(2) of the RST Act, 1994 read with Rule 55 of the RST Rules, 1995, after its amendment in consequence to the judgment in State of Rajasthan And Another vs. M/s. D.P. Metals (supra), provides for an opportunity, to be given to produce the required document and/or declaration forms complete in all respects when the goods enters or leaves the nearest check-post of the State. Sub-rule (2) of Rule 55 requires that verification or enquiry shall be completed within seven days from the date of issue of the direction, and for action, if any, warranted in the circumstances of the case, in pursuance to the direction given under sub-clause (a) of clause (4) of Section 78 of the RST Act, 1994, which provides that where any goods in movement, other than exempted goods, are without documents, or are not supported by documents as referred to in sub-section (2), or documents produced appear false or forged, the Incharge of the check-post or the officer empowered under sub-section (3), may direct the driver or the person incharge of the vehicle or carrier or of the goods not to part with the goods in any manner including by retransporting or rebooking, till a verification is done or an enquiry is made, which shall not take more than seven days. 34. The suspicion or doubt on the documents to be false or forged, per se, does not attract levy of penalty under sub-section (5) of Section 78 of the RST Act, 1994. In such case, an opportunity is to be given under Rule 55(1) of the RST Rules, 1995, to a person, to produce the required documents and/or declaration forms completed in all respects, when the goods enters or leaves the nearest check-post of the State. It is only when a person despite giving such an opportunity, is not able to produce the document and/or declaration forms completed in all respects, when the goods enters or leaves the nearest check-post of the State, or the documents are found to be false or forged, after enquiry, that a penalty may be imposed, which is a civil liability for compliance of the provisions of the Act for the purposes of checking the evasion of tax. It is thus not correct to submit that penalty for submission of false or forged document or declaration, necessarily involves adjudication, for which mens rea is relevant, and is a necessary ingredient. Any doubts in this regard have been clarified by the Hon'ble Supreme Court in Guljag Industries vs. Commercial Taxes Officer (supra), in which it has been clearly held in para 30, after quoting the provisions of Section 78, that; “In the present case also the statute provides for a hearing. Any doubts in this regard have been clarified by the Hon'ble Supreme Court in Guljag Industries vs. Commercial Taxes Officer (supra), in which it has been clearly held in para 30, after quoting the provisions of Section 78, that; “In the present case also the statute provides for a hearing. However, that hearing is only to find out whether the assessee has contravened Section 78(2) and not to find out evasion of tax which function is assigned not to the officer at the check-post but to the AO in assessment proceedings. In the circumstances, we are of the view that mens rea is not an essential element in the matter of imposition of penalty under Section 78(5).” 35. In view of the aforesaid discussion, our answers to the questions referred, are as follows:- (i) The requirement of mens rea is not relevant for the purpose of determining the liability for penalty, in terms of Section 78(5) of the RST Act, 1994. (ii) The mens rea is not required to be proved as necessary ingredient for imposition of penalty under sub-section (5) of Section 78, on proving violation of sub-section (2) of Section 78 of the RST Act, 1994. (iii) The amendment to Rule 55 of the RST Rules, 1995, in pursuance to the decision of the Hon'ble Supreme Court in State of Rajasthan And Another vs. M/s. D.P. Metals (supra), authorises the authority empowered, to make an enquiry of violation of Section 78(2), and not to adjudicate as to whether the mens rea was present in violation of sub-section (2) of Section 78, for imposing penalty under sub-section (5) of Section 78 of the RST Act, 1994. (iv) The mens rea is not required to be proved as necessary ingredient for imposition of penalty under sub-section (5) of Section 78, on proving violation of sub-section(2) of Section 78 of the RST Act, 1994. 36. With the decision on the aforesaid referred questions, let the S.B. Sales Tax Revision No.92/1999, and other connected Sales Tax Revisions, be sent back and be listed before the Bench having jurisdiction to decide the matters, in accordance with the opinion given by us and the answers provided above on such opinion. The reference is disposed of in the aforesaid terms.